Psystar to countersue Apple for antitrust violations

[MrMatt138]

all retail copies of mac os x ARE upgrades. you are upgrading from an earlier version of mac os - the one that shipped with your computer.

There is no such thing as a stand alone version since there are no macs that sold without an os.

NO NO NO, this is WRONG. Come on, everyone on this forum has, at one time or another, performed all 3 of the installation options when installing OSX.

1. Upgrade. - default settings

2. Archive & Install - Old system files are moved to a folder called "Previous Systems" and a completely new system is installed. You can save your user account, but you aren't required to.

3. Erase & Install - Disk Utility allows you to format your drive and install a clean copy of OSX.

So perhaps someone would like to explain to me what exactly I'm upgrading FROM with installation options 2 and 3? Anyone?

This is probably flogging a dead horse, but I'm not going to read 40 pages of posts to make sure someone set this straight

 

[Definity]

Easiest solution, call apple sales support and ask them, is this retail package an upgrade or a full retail version.


Simple.


---------------------------

Edit, tried getting in touch with microsoft, to see what they say. Apparently they "do not have the resources to look into apple's licensing and usage policies".

 

[pdjudd]

So perhaps someone would like to explain to me what exactly I'm upgrading FROM with installation options 2 and 3? Anyone?

You are upgrading the version of OSX that was provided with your Macintosh - actually the license which may or may not have software pre-installed. As it has been stated before, the physical Apple branded box is the key eligibility requirements to install the OS regardless of the methodology. Again. You can purchase a Vista upgrade disk and still have it format your computer and do a clean install over the old OS.

 

[mccldwll]

Let's end macenforcer's nuisance thread.
If you're not a lawyer and/or someone with specific expertise in this area ("it's not fair", "I wanna", or "people should be able to" don't count), please drop out. The very few of us remaining certainly can agree that any further discussion is a total waste of time and bandwidth.

 

[netnothing]

NO NO NO, this is WRONG. Come on, everyone on this forum has, at one time or another, performed all 3 of the installation options when installing OSX.

1. Upgrade. - default settings

2. Archive & Install - Old system files are moved to a folder called "Previous Systems" and a completely new system is installed. You can save your user account, but you aren't required to.

3. Erase & Install - Disk Utility allows you to format your drive and install a clean copy of OSX.

So perhaps someone would like to explain to me what exactly I'm upgrading FROM with installation options 2 and 3? Anyone?

This is probably flogging a dead horse, but I'm not going to read 40 pages of posts to make sure someone set this straight

I think the issue mainly is that technically Apple sees the OS X DVD on the shelves as an upgrade. (Yes it contains the full version of the software, every upgrade disc does.....from XP to Vista to CS3....all the "upgrade" discs contain the full version of the software.)

Why do they classify it as an upgrade but don't list it as one? I think mainly because of the EULA. You are not allowed to install OS X on non-Apple hardware. Well, if that's the case, you can't BUY Apple hardware without a version of OS X already installed. So the assumption is that if you are installing this on a Mac (which you have to do), then at one point it came with OS X installed already.

See, Apple doesn't do the previous version check like Microsoft or Adobe does, whether it be checking for a previous version already installed, or if the drive has been formatted, checking for previous media such as the original restore DVDs.

Maybe Apple can change the labeling to say Upgrade, and force users to either have the old version on the system, or put in their original restore discs.

So perhaps someone would like to explain to me what exactly I'm upgrading FROM with installation options 2 and 3? Anyone?

So to specifically answer your question, you are upgrading the original OS that came installed on your Apple Hardware. Upgrading in the sense that you are moving from a lower version to a newer higher version, not technically upgrading individual files per se.

-Kevin

 

[macsmurf]

Cannot use what product?

The purchased macbook

Yes, he did. He chose not to use it, but he most certainly possessed it.

No, he didn't. Se below.

Based on? The printed materials of the Macintosh are not parts of the OS X license.

Based on the EULA. I'm talking about the printed materials of the OS X software. Here is the relevant section:

"3. Transfer. You may not rent, lease, lend, redistribute or sublicense the Apple Software. Subject to the restrictions set forth below, you may, however, make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts (excluding Apple Boot ROM code and firmware), original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this License. You may not rent, lease, lend, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2D above. All components of the Apple Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. Apple Software provided with a particular Apple-labeled hardware product may not run on other models of Apple-labeled
hardware."

So, if you do not include the printed materials, you cannot transfer the license, according to the EULA. Note that they explicitly exclude the Boot ROM, so the hardware is not a part of the bundle.

The computer, being a Mac, is ipso facto licensed to operate whatever version of OS X it originally shipped with.

What you are saying is directly contradicting the EULA. License transference is not automatic with the transfer of the Macbook, but depend on additionel conditions.

 

[pdjudd]

So, if you do not include the printed materials, you cannot transfer the license, according to the EULA. Note that they explicitly exclude the Boot ROM, so the hardware is not a part of the bundle.

I believe that even if you could not get them online, Apple could very well provide them to you for free or at little cost so that you can accommodate those terms unenforceable as they are (and given the fact that there is no way to check that you possess them).

I suppose that if Apple ever asked, providing the serial number of the Mac would convince them that you are just fine.

 

[macsmurf]

I believe that even if you could not get them online, Apple could very well provide them to you for free or at little cost so that you can accommodate those terms unenforceable as they are (and given the fact that there is no way to check that you possess them).

I suppose that if Apple ever asked, providing the serial number of the Mac would convince them that you are just fine.

Again, that is irrelevant. The EULA explicitly mentions the printed materials. Without them, you cannot transfer the license. If you cannot transfer the license, but you can sell the macbook, that means that the buyer does not possess a license. If the buyer can go out, buy OS X, and install it without being in breach, that means that the buyer does not need a previous license to install a retail version of OS X. Thus, it is not an upgrade. Thus, the Macbook and the retail OS X are two different products. Thus, tying is relevant.

 

[pdjudd]

Again, that is irrelevant. The EULA explicitly mentions the printed materials. Without them, you cannot transfer the license. If you cannot transfer the license, but you can sell the macbook, that means that the buyer does not possess a license. If the buyer can go out, buy OS X, and install it without being in breach, that means that the buyer does not need a previous license to install a retail version of OS X. Thus, it is not an upgrade. Thus, the Macbook and the retail OS X are two different products. Thus, tying is relevant.

Did you even read what I said? Printed materials can be obtained readily before the sale can be initiated. I know for a fact that the EULA for example is available from Apple in PDF form.

However arguably the MacBook itself is the license that gets transferred.

 

[macsmurf]

Did you even read what I said? Printed materials can be obtained readily before the sale can be initiated. I know for a fact that the EULA for example is available from Apple in PDF form.

However arguably the MacBook itself is the license that gets transferred.

The macbook is NOT the license. The license is the license. Again, the point is not that there might be an easy way to get the components you've lost from Apple. The point is, that it is possible to transfer the macbook without transferring the software license. If you buy OS X separately, it is also possible to transfer the software without transfering the hardware. In other words, the license does not automatically follow the hardware. Thus, it is not an upgrade etc. ad nauseum.

 

[pdjudd]

The macbook is NOT the license.

I assert that it is - its a prerequisite to install Leopard Retail (via the EULA)

 

[macsmurf]

I assert that it is - its a prerequisite to install Leopard Retail (via the EULA)

An Apple-branded computer is necessary. There is no restriction on the specific Apple-branded computer you want to install it on, or that you need to have a previous license in order to install it.

 

[pdjudd]

An Apple-branded computer is necessary. There is no restriction on the specific Apple-branded computer you want to install it on, or that you need to have a previous license in order to install it.

True. However the the specific brands get determined by the published software requirements (hard drive space, processor, RAM) etc.

 

[macsmurf]

True. However the the specific brands get determined by the published software requirements (hard drive space, processor, RAM) etc.

That is not part of the license, though, and even if it were, the brand still does not uniquely specify the computer you are allowed to install it on.

 

[pdjudd]

That is not part of the license, though, and even if it were, the brand still does not uniquely specify the computer you are allowed to install it on.

Apple permits installation of the retail of Leopard on a Apple Branded computer with specifc system requirements. How does that not specify the type of computers that you can sell them on? You are already restricted to items that Apple sells. Thats step one. The installer won't work though if your computer doesn't meet the requirements.

 

[macsmurf]

Apple permits installation of the retail of Leopard on a Apple Branded computer with specifc system requirements. How does that not specify the type of computers that you can sell them on? You are already restricted to items that Apple sells. Thats step one. The installer won't work though if your computer doesn't meet the requirements.

I'm not sure I can make it any clearer. The type of computer is not a unique identification. If I tell you I'm human, that does not uniquely identify me. If I tell you my SSN#, that does uniquely identify me.

This is the point: do you agree, that I can legally install a retail copy of OS X on a MaBook without being in possession of a license to a previous version of OS X?

 

[pdjudd]

I'm not sure I can make it any clearer. The type of computer is not a unique identification. If I tell you I'm human, that does not uniquely identify me. If I tell you my SSN#, that does uniquely identify me.

This is the point: do you agree, that I can legally install a retail copy of OS X on a MaBook without being in possession of a license to a previous version of OS X?

Where does Apple state you need a unique identifier? The basic qualification is an Apple branded computer. That qualifies you to install a valid version of Leopard providing that computer meets other system requirements.

Where have I said that is not the case?

 

[macsmurf]

Where does Apple state you need a unique identifier? The basic qualification is an Apple branded computer. That qualifies you to install a valid version of Leopard providing that computer meets other system requirements.

They don't, is my point.

Where have I said that is not the case?

Well, if you agree then you agree that the Macbook and the retail version of OS X are two different products.

 

[BaldiMac]

Again, tell me where in the Leopard EULA it states where I need a previous valid license of OSX (therefore implying that the boxed edition of Leopard is an upgrade). All it states is that I need 'Apple hardware' which is exclusionary to other hardware manufacturers.

Are you sure you mean preclude? Anyway, you can buy a Macbook on Ebay with a wiped (or no) hard drive, go out and buy Leopard, and legally install it.

You can't buy Apple hardware (referring to a computer, of course) that does not include a license for OS X. Even if the hard drive has been wiped, the hardware still came with a license for OS X.

 

[kiang]

This was my quote from the Mario Galaxy manual:

This Nintendo game is not designed for use with any unauthorized device. Use of any such device will invalidate your Nintendo product warranty. Copying of any Nintendo game is illegal and is strictly prohibited by domestic and international intellectual property laws. “Back-up” or “archival” copies are not authorized and are not necessary to protect your software. Violators will be prosecuted.

So you're saying that where you live, Nintendo is okay with you using their games on clone systems? Not only this, but copying their games is authorized?

Where do you live, and can anyone else verify this?

I never said copying is OK. From Daxter, DragonballZ Shin Budokai & Shin Budokai 2 (same in all manuals btw,):
(Translated)
...
Illegal Copying:
The PSP-software and this disc contain technical security mechanisms developped to prevent unauthorized copying of the intellectual property. Unauthorized use of registered trademarks or unauthorized multiplication of protected work by avoiding these mechanisms is prohibited by law.

Parental Controls
...

That's it. I double-checked everything, and nowhere is anything to be found about usage on other systems then the PSP. The closest thing is on the packaging: "This disc is designed to work with the Sony PSP system", But nothing states you can't use it with a clone. The only thing that is prohibited, is using a third-party system to copy the game, but playing it can be done on any system.

But even if they did, it would be useless: part of my education (ICT) is intellectual property, and the Belgian law does not recognize software EULAs as legally binding. This is because users can't or do not read the EULA before they buy it. If all costumers would be forced to read through the whole EULA before they buy the product, Belgian law would recognize them, but since this is such a drag, software companies didn't really care to adapt to this, so Belgium is EULA-free for software.

Copying however is prohibited by law when the owner didn't give explicit clearance.

The reason why Console-companies don't really care about using clone systems is that their hardware isn't meant to make profit: they make profit through selling games. The systems are often even sold with losses (like the PSP the first months, I think by now they make a bit of profit on the sales).

All of this btw makes it legal to install OSX on a clone in Belgium. However I want Apple to just open up OSX completely to run on clones, jsut because it would HURT windows, and I'd be able to get better hardware (I'm talking about a decent graphics card)

 

[macsmurf]

You can't buy Apple hardware (referring to a computer, of course) that does not include a license for OS X. Even if the hard drive has been wiped, the hardware still came with a license for OS X.

That is not necessarily true. The license to the software does not automatically follow the hardware, as stated in Apple's EULA.

 

[Lord Blackadder]

I think this little spat could have a bad outcome. Most of the people that support Psystar's argument dream starry-eyed of a day when they can install OS X with full support (from who?) on any PC hardware they want.

The reality of it is, if Apple loses either lawsuit, they will implement draconian measures to insure that it is physically impossible to run OS X on PCs, even if that means neutering or even getting rid of BootCamp. Mark my words, no good can come from a Psystar victory. Not for Mac users anyway.

 

[BaldiMac]

That is not necessarily true. The license to the software does not automatically follow the hardware, as stated in Apple's EULA.

In what practical way would this happen?

 

[pdjudd]

But even if they did, it would be useless: part of my education (ICT) is intellectual property, and the Belgian law does not recognize software EULAs as legally binding. This is because users can't or do not read the EULA before they buy it. If all costumers would be forced to read through the whole EULA before they buy the product, Belgian law would recognize them, but since this is such a drag, software companies didn't really care to adapt to this, so Belgium is EULA-free for software.

What if the EULA was made available to the customer before the product was purchased. Leopards EULA is readily available online. Plus I doubt that I can get out a contract (especially If I was a business) simply because I failed to read it. If that were the case, no contract could be validated.

But this is irrelivant anyay since both Apple and Psysar operate in the US and must follow US law since they operate in that country and since Apple's trademarks are in the US. Its all about trademarks - not EULA.

 

[aristotle]

NO NO NO, this is WRONG. Come on, everyone on this forum has, at one time or another, performed all 3 of the installation options when installing OSX.

1. Upgrade. - default settings

2. Archive & Install - Old system files are moved to a folder called "Previous Systems" and a completely new system is installed. You can save your user account, but you aren't required to.

3. Erase & Install - Disk Utility allows you to format your drive and install a clean copy of OSX.

So perhaps someone would like to explain to me what exactly I'm upgrading FROM with installation options 2 and 3? Anyone?

This is probably flogging a dead horse, but I'm not going to read 40 pages of posts to make sure someone set this straight

Those options are irrelevant. It does not matter if you can do a clean install with the disk since the license of the product assumes that you have a previous version of the operating system in your possession which came preinstalled on your mac.